McDonald v. Flake

• Decision Date: 29 February 2016
• Docket Number: Nos. 14–6258,14–6370.,s. 14–6258
• Parties: Michael McDONALD; Quinton Lytle, Plaintiffs–Appellees, v. Marico FLAKE; City of Memphis, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

814 F.3d 804

Michael McDONALD; Quinton Lytle, Plaintiffs–Appellees,

v.Marico FLAKE; City of Memphis, Defendants–Appellants.

Nos. 14–6258

14–6370.

United States Court of Appeals, Sixth Circuit.

Feb. 29, 2016.

ON BRIEF:Mary Elizabeth McKinney, Deborah Godwin, Godwin, Morris, Laurenzi & Bloomfield, P.C., Memphis, Tennessee, for Appellant in 14–6258. Henry L. Klein, Richard J. Myers, Apperson Crump PLC, Memphis, Tennessee, for Appellant in 14–6370. Robert L.J. Spence, Jr., Bryan M. Meredith, The Spence Law Firm, Memphis, Tennessee, for Appellees.

Before: BATCHELDER, ROGERS, and COOK, Circuit Judges.

OPINION

ALICE M. BATCHELDER, Circuit Judge.

In this interlocutory appeal from the denial of summary judgment, we are presented with three separate but related issues. In the first, a defendant police officer, Marico Flake, argues that the plaintiffs' evidence did not create a genuine dispute of material fact so as to overcome his motion for summary judgment based on qualified immunity. On this issue, we have appellate jurisdiction and AFFIRM.

In the second, the defendant City of Memphis, Tennessee, argues that the plaintiffs' evidence did not create a genuine dispute of material fact to overcome summary judgment on charges of municipal liability, and pursues this interlocutory appeal under a theory of pendent appellate jurisdiction. On this issue, we lack jurisdiction and necessarily DISMISS.

In the third issue, the plaintiff-appellees, Michael McDonald and Quinton Lytle, seek sanctions against the defendant-appellants, in the form of attorney's fees they have incurred in defending this appeal, on the basis that this appeal is knowingly frivolous and taken in bad faith. On this issue, considering the defendants' disregard for the governing law and the particular circumstances here, we agree with the plaintiffs and GRANT the motion for sanctions.

I.

This interlocutory appeal arises from the district court's denial of the defendants' motions for summary judgment in a civil lawsuit, brought under 42 U.S.C. § 1983 and various state laws, in which the plaintiffs claim excessive force against a certain police officer and municipal liability against his employer. The plaintiffs, Michael McDonald and Quinton Lytle, are both adult African–American males. The named defendants are the City of Memphis, Police Officer Marico Flake (an African–American male), and up to five other "John Doe" police officers.

During the two years of discovery, the parties entered substantial evidence into the record, including deposition transcripts, affidavits, and documentary evidence. The district court relied on and cited this evidence in its memorandum opinion (R. 114) and we rely on that determination of facts for our purposes here, both in summarizing the case and in our analysis.

A.

At about 3:00 a.m. on July 4, 2011, McDonald, Lytle, and four adult female friends, at least two of whom were Caucasian, were walking past the Memphis Police Department's Entertainment District Unit (EDU) precinct. They were coming from the nearby Entertainment District, where they had spent the evening socializing and drinking alcoholic beverages.

Meanwhile, several off-duty police officers, including defendant Officer Flake, had congregated in the EDU precinct parking lot to socialize. This included at least some officers who were drinking alcohol, both beer and harder alcohol. Such alcohol consumption by off-duty officers at the EDU precinct, commonly dubbed "Choir Practice" by its participants, was not only commonplace at the EDU precinct, but had been occurring for decades at precincts throughout the City.

When the plaintiffs stopped in front of the EDU precinct, Officer Flake approached them and, in telling them to move along, referred to their female Caucasian companions as "snow bunnies." No one in this case disputes that this is commonly understood to be a racial slur. McDonald explained that because he smelled alcohol on Officer Flake's breath, because Officer Flake had not identified himself as a police officer, and mostly because of the inflammatory "snow bunnies" slur, McDonald responded: "Who the fuck are you?" But the plaintiffs' group nonetheless walked away, crossing the street, whereupon Officer Flake yelled after them, "I'm going to show y'all who I am," and violently attacked McDonald. Lytle turned around to see Officer Flake kneeing McDonald in the back and another officer tackling McDonald. Coming to McDonald's aid, Lytle tried to pull Officer Flake off McDonald but other officers joined in and—while shouting "Stop resisting arrest!"—punched, kicked, and struck the plaintiffs with batons or flashlights, causing injuries that left each plaintiff with over $7,000 in medical bills.

Officer Flake denied any wrongdoing and offered a different, and irreconcilable, account of these events, in which he was faultless and victimized by the plaintiffs' misconduct. But all parties agree that the officers eventually subdued plaintiffs McDonald and Lytle, placed them into physical custody, and transported them both to a hospital emergency room for treatment of their injuries. When the hospital discharged them, the police booked both into custody at the Shelby County Criminal Justice Center and charged them with resisting official detention, public intoxication, and disorderly conduct. But McDonald and Lytle spent less than a day in custody before being released and the State later dismissed all charges against them.

B.

McDonald and Lytle filed an administrative complaint with the Memphis Police Department's Inspectional Services Bureau, which found that the officers had used excessive force and violated departmental personal conduct policies. The officers appealed the resulting suspensions but the record does not report the outcome of that appeal.

McDonald and Lytle also sued both Officer Flake and the City of Memphis in federal court, claiming arrest without probable cause, excessive force, and municipal liability. Officer Flake moved for summary judgment on grounds of qualified immunity, but the district court denied the motion upon finding genuine disputes of material fact, such as who initiated the physical violence and whether Officer Flake's use of force was objectively reasonable given the accusations that he had been drinking, provoked the situation with a racial slur, failed to identify himself as a police officer, and knew that the many other nearby, alcohol-impaired officers would engage violently. The City moved for summary judgment on the municipal liability claim, but the district court denied that motion upon finding genuine disputes of material fact, such as whether the City was indifferent to officers' alcohol consumption at the precinct given testimony that the practice was "widespread" for the past 30 years and not a single officer had ever been disciplined for it.

C.

The plaintiffs filed suit on June 27, 2012, and the parties engaged in discovery and motion practice for over two years. On June 25, 2014, the court set trial to begin on October 20, 2014. On August 8, 2014, Officer Flake and the City moved separately for summary judgment. On September 26, the City moved to continue the trial to a later date. At a motion hearing on October 2, the court orally denied the motion to continue, alerted the parties that it would be denying the motions for summary judgment in a forthcoming order, and reiterated that trial would begin on October 20, with a pretrial conference on October 14.

The district court filed the order denying summary judgment on October 7, 2014. Officer Flake filed a notice of interlocutory appeal on October 10, 2014, and later that same day, the plaintiffs responded with a "Motion to Certify Defendant Marico Flake's Interlocutory Appeal as Frivolous and Proceed to Trial, and for Expedited Briefing Schedule." R. 126. Relying primarily on Yates v. City of Cleveland, 941 F.2d 444, 448–49 (6th Cir.1991), the plaintiffs argued that because the district court based its decision on disputed facts, this court would lack appellate jurisdiction, and that this is a "[p]roceeding[ ] masquerading as [a] Forsyth appeal[ ] but in fact not presenting genuine claims of immunity," id. at 448 (quoting Apostol v. Gallion, 870 F.2d 1335, 1339 (7th Cir.1989) ), making the appeal frivolous and brought solely to delay the trial, which was still scheduled to begin on October 20 (just ten days later). On October 13, 2014, the City filed a notice of interlocutory appeal, purporting to "join" Officer Flake's appeal, R. 128, and on that same day these two defendants filed a "Joint Motion for Stay Pending Appeal," R. 129. Also that same day, the plaintiffs filed a response, urging the court to deny the stay and to "certify the defendants' interlocutory appeals as frivolous," R. 130. Further argument ensued in the form of multiple reciprocal responses and replies.

Following the hearing on October 14, 2014, the district court granted the defendants' motion to stay and correspondingly denied the plaintiffs' motion to declare the appeals frivolous. R. 144 (Oct. 16, 2014). In its order, the court reiterated that its denial of summary judgment rested on the genuine disputes of material fact, but conceded that Officer Flake could raise a legal issue for which this court would have interlocutory appellate jurisdiction, emphasizing:

[I]t is well recognized that such appeals are only appropriate where they are based on a question of law, not a factual dispute. Mitchell [v. Forsyth, 472 U.S. 511, 530 [105 S.Ct. 2806, 86 L.Ed.2d 411] (1985) ]. Therefore, as the case law recognizes, on such an appeal the defendant must accept the plaintiffs' version of the facts. Latits v. Phillips, 573 Fed.Appx. 562, 564–65 (6th Cir.2014) ; Quigley v. Tuong Vinh Thai, 707 F.3d 675 (6th Cir.2013).

The contents of the [defendants'] written filings and arguments before the [c]ourt in its October 14, 2014, hearing rehashed many of [the] disputes Officer Flake has with Plaintiffs' version of the facts.

...